Forest Practices Authority v Anti-Discrimination Commissioner

[2025] TASSC 19

[2025] TASSC 19

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Forest Practices Authority v Anti-Discrimination Commissioner [2025] TASSC 19
PARTIES:	FOREST PRACTICES AUTHORITY;
DIRECTOR OF PUBLIC PROSECUTIONS
v
ANTI-DISCRIMINATION COMMISSIONER; THE HON GUY BARNETT, ATTORNEY-GENERAL FOR THE STATE OF TASMANIA
FILE NO:	1366/2023
DELIVERED ON:	7 April 2025
DELIVERED AT:	Hobart
HEARING DATE:	8 November 2024
Written submissions 7, 21 February 2025
JUDGMENT OF:	Porter AJ
CATCHWORDS:

Human Rights – Jurisdiction and procedure – Tasmania – Functions of Anti-Discrimination Commissioner – Commissioner may reject complaint on specified grounds – Acceptance gives rise to investigation, liability to compulsory conciliation and possible referral to a tribunal for inquiry – Decision to accept complaint not amendable to judicial review under the Judicial Review Act 2000.

Anti-Discrimination Act 1998, s 64.
Edelsten v Health Insurance Commission (1990) 27 FCR 56; Harris v Bryce [1993] 41 FCR 388; Yoong v Chief
Executive of Medicare [2021] FCA 701, applied.
Byrne v Marles [2008] VSCA 78, 19 VR 612, considered.
Aust Dig Human Rights [53]

Human Rights – Jurisdiction and procedure – Tasmania – Complaint to Anti-Discrimination Commissioner defined as one made in relation to discrimination or prohibited conduct – Commissioner may reject a complaint that does not meet the definition – Test for rejection – Observation that complaint must allege in sufficient detail matters which are capable, if established, of amounting to discrimination or prohibited conduct within jurisdiction.

Anti-Discrimination Act 1998, s 64(1)(b).
Nestle v Equal Opportunity Board [1990] VR 805; Commissioner of Police v Reid [2000] TASSC 181, 9 Tas R
418, applied.

Aust Dig Human Rights [53]

REPRESENTATION:

Counsel:

Applicant:	G Chen
Respondent:	Submitted to the Court's jurisdiction
Intervener:	J O'Farrell

Solicitors:

Applicant:	State Litigation Office
Intervener:	Crown Solicitor

Judgment Number:	[2025] TASSC 19
Number of paragraphs:	111

Serial No 19/2025 File No 1366/2013

FOREST PRACTICES AUTHORITY and the DIRECTOR OF PUBLIC

PROSECUTIONS v the ANTI-DISCRIMINATION COMMISSIONER and the HON

GUY BARNETT, ATTORNEY-GENERAL FOR THE STATE OF TASMANIA

REASONS FOR JUDGMENT (REVISED)*	PORTER AJ 7 April 2025
Introduction

1             This is an application for judicial review under the Judicial Review Act 2000 (the JRA). The respondent Commissioner has filed a notice of submission and the Attorney-General (the Attorney) has intervened in the proceedings. On 8 May 2023 the Anti-Discrimination Commissioner accepted a complaint "for investigation" under the Anti-Discrimination Act 1998 (the ADA) lodged by Alan Robert Smith against the applicants, the Forest Practices Authority (the FPA) and the Director of Public Prosecutions (the DPP). The Commissioner provided written reasons for doing so.

2             The background is that, upon a referral from the FPA, Crown prosecutors working in 'summary prosecutions' with the DPP filed two complaints against Mr Smith in the Magistrates Court. The complainant in those proceedings was named as Dr Peter Volker, then Chief Forest Practices Officer of the FPA. The first complaint was filed on 29 March 2020; the second on 5 October 2022. Each contains five charges alleging offences against various provisions of the Forest Practices Act 1985. All charges relate to allegations of unauthorised clearing of trees or vegetation on Mr Smith's property on King Island. A Crown prosecutor, Verity Dawkins, had carriage of the proceedings at the time of, or shortly before, the complaint to the Commissioner was made. Mr Smith had been unable get a grant of legal aid and was self-represented. (The proceedings against Mr Smith were finalised on 8 January 2025.)*

3             The complaint of discrimination was lodged on Mr Smith's behalf by his daughter, Cherie Smith. It alleges discrimination by not providing disclosure in the criminal proceedings in audio format given Mr Smith's low level literacy. Both the FPA and the Office of the Director of Public Prosecutions are named as the "organisations" the subject of complaint. The Commissioner's written reasons also name the Office of the DPP as the "second respondent" and the Commissioner states that the investigation will explore whether that Office (and the FPA) complied with s 104 of the ADA. That section requires "organizations" – defined as including a Government department within the meaning of the State Service Act 2000 or State authority – to ensure, among other things, that its members, officers and employees are aware of discrimination and conduct to which the ADA relates.

4             Under the State Service Act, the "Office of the Director of Public Prosecutions" is neither a State department nor a State authority. Section 3 of the Director of Public Prosecutions Act 1973 creates the office of the Director, who is an individual. The Director is named as the second applicant in these proceedings, and not the "Office of the Director of Public Prosecutions". The Attorney, as intervener in these proceedings, took no issue with that and there is no challenge to standing. However, the difficulty may not end there. The person to whom the notice from the Commissioner of the acceptance of the complaint and the notice to attend conciliation was not the DPP, (although the salutation was "Dear Director"), but Ms Dawkins, described in the notice as "Crown Counsel "Summary Prosecutions". She

______________

* Par [2] was revised on 10 April 2025: see the addendum to these reasons.

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had been in contact with Ms Smith over the disclosure issue. The implications are obvious, and it is best if I leave the matter there. Any such irregularities were not the subject of argument, and for the purposes of these reasons, I can ignore them.

5   The following summary of Mr Smith's complaint is taken from the Commissioner's reasons:

• Mr Smith has low level literacy skills and struggles to read and write; he has had this difficulty with childhood and has never been able to read a book or comic.

• In February 2023, Mr Smith's daughter wrote on his behalf to the FPA requesting documentary disclosure be provided to Mr Smith in an accessible audio format.

• To the date of complaint to the Commissioner, (26 April 2023), neither the FPA nor the DPP had agreed to this request.

• Mr Smith is at a disadvantage in his dealings with the FPA and the DPP; which have been very stressful for him and adversely affected his health.

• As a result of his disadvantage, he is at risk of incurring substantial fines and potentially losing his home and farm in the event of adverse findings.

6   In short, the Commissioner determined that:

• The alleged requirement or practice of providing in writing allegations of breaches of the Forest Practices Act and the outline of evidence relied on disadvantaged Mr Smith on the basis of his disability, namely the capacity to read and write.

• There was possible indirect discrimination on the basis of that disability in connection with the administration of any law of the State or any State program.

• The allegation disclosed potential offensive, humiliating, intimidating, insulting or ridiculing conduct on the basis of disability in the area of the administration of a law of the State or a State program.

• Conduct before 27 April 2022 was excluded from consideration as falling outside the 12 month time limit imposed by s 63(1) of the ADA.

7            For the sake of completeness, I should note that the affidavit material shows a dispute about the extent of Mr Smith's capacity or incapacity to read. In a letter to Ms Smith from the FPA in April 2022, it is suggested that Mr Smith has claimed on several occasions that he has read and understood the Forest Practices Act and Regulations. However, such a dispute is not material to matters that I am required to decide, and I proceed on the basis that there is a claimed inability to read to a meaningful level in the circumstances. I should also note that in the same letter, options to convert text-based correspondence into audio were canvassed. Those options were re-visited in correspondence to Ms Smith from a prosecutor in August 2022. Ms Smith has put forward various reasons why those things are not available or would not assist.

Some parts of the ADA

8   The immediately relevant parts of the ADA are as follows.

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9             Section 16 provides that a person must not discriminate against another person on the ground of any of 22 prescribed attributes, one of which is "disability". "Disability" has a lengthy definition in the ADA, but for present purposes, I do not need to set it out.

10   The concept of indirect discrimination is dealt with in s 15.

"15	Indirect discrimination
(1)	Indirect discrimination takes place if a person imposes a condition, requirement or practice which is unreasonable in the circumstances and has the effect of disadvantaging a member of a group of people who –

(a)	share, or are believed to share, a prescribed attribute; or
(b)	share, or are believed to share, any of the characteristics imputed to that attribute –

more than a person who is not a member of that group.

(2) For indirect discrimination to take place, it is not necessary that the person who discriminates is aware that the condition, requirement or practice disadvantages the group of people."

11           Section 17 prohibits certain conduct. Subsection (1) provides that a person must not engage in any conduct which offends, humiliates, intimidates, insults or ridicules another person on the basis of any one of fourteen of the prescribed attributes referred to in s 16, disability being one of them, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated, intimidated, insulted or ridiculed.

12           The heading of s 22 is "Areas of activity". Section 22(1) provides that the ADA applies to discrimination and prohibited conduct (other than inciting hatred) by or against a person engaged in, or undertaking any, activity in connection with a number of areas, including such things as employment, education and training, and the provision of facilities goods and services. One area is "administration of any law of the State or any State program": s 22(1)(f).

The Commissioner's reasons

13           In her reasons for accepting the complaint, the Commissioner said the allegation related to Mr Smith requesting the respondents provide him with alternative means to understand the nature of the criminal charges against him and the evidence relied on. The Commissioner determined that as Mr Smith's request related to criminal charges brought against him, the administration of any law of the State or program was the appropriate area of activity. The Commissioner continued:

"The allegation therefore discloses possible indirect discrimination on the basis of disability in connection with the administration of any law of the State or any State program …

…
It is alleged the Respondents imposed a condition, requirement or practice that:

1.     Its allegations that Mr Smith was in breach of the Forest Practices Act (1985) were provided in writing.

2.     Its outline on the evidence upon which it relied in this regard was in writing.

As noted above, Mr Smith has poor literacy which significantly impacts his capacity to both read and write. This in turn significantly affects his capacity to meaningfully engage with a legal process … .

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[The Commissioner noted the request to provide documentation in an accessible form
and the absence of a response to that request]

Mr Smith is not legally represented and does not have the financial resources to engage a lawyer to represent him. Because of this, it is arguable the alleged treatment is unreasonable in the circumstances. This is because in the absence of some reasonable adjustment being made by the Respondents to take account of his disability, Mr Smith will not be afforded natural justice or procedural fairness …. .

It can be considered from this, that the alleged practice disadvantages Mr Smith on the basis of this disability, and that he is being disadvantaged by the respondents' [sic] practice more than people without that disability namely the capacity to read or write."

14           The Commissioner went on to say it was arguable that a reasonable person, having regard to the alleged circumstances, would have anticipated that Mr Smith would be offended, humiliated, intimidated, assaulted or ridiculed. The Commissioner determined that the complaint therefore disclosed potential offensive humiliating, intimidating, insulting or ridiculing conduct on the basis of disability in the area of the administration of any law of the State or any State program.

The grounds of review

15           The application seeks the quashing of the decision by reason of six separate grounds. Those grounds fall into two categories. The first category relates to the Commissioner's determination that Mr Smith has a disability as referred to in s 16(k) of the ADA. The second category relates to the Commissioner's determination that Mr Smith's complaint concerned the administration of any law of the State or any State program within the meaning of s 22(1)(f) of the ADA.

16          There are three identical allegations in each category. Taken respectively from s 17(2)(c), (d) and (e) of the JRA, they are that:

• the Commissioner did not have jurisdiction to accept the complaint;

• the decision was not authorised by the Act;

• the decision involved an error of law.

A preliminary point – is the decision reviewable?

17           Before dealing with the grounds, I need to resolve the question of whether the Commissioner's decision to accept the complaint, is one that is subject to judicial review under the JRA. After I reserved my decision, the Attorney sought leave to make further written submissions following an admittedly late identification of a point that arises from s 15(2) of the JRA. That section provides as follows:

"15 Operation of other laws

(1) This Act has effect despite any law in force at its commencement.

(2) This Act does not affect the operation of an enactment mentioned in Schedule 2."
[Emphasis added].

18           The ADA was added to Schedule 2 of the JRA by way of the Anti-Discrimination Amendment Act 2013. This amendment was apparently made because of a recommendation in the Final Report of a review relating to the operation of the ADA.[1] In turn, the origin of that recommendation seems to be comments made by Underwood J (as he then was) in Mazukov v Anti-Discrimination Tribunal [2004]

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[1]           Final Report of the Review of the Complaints Handling and Dispute Resolution process of the Anti-Discrimination Act 1998.

TASSC 68. Having concluded that the JRA applied to the Tribunal's decisions to reject and dismiss a complaint upon review under s 72 of the ADA, his Honour said it seemed surprising that Parliament intended this result.

19           His Honour observed that by not exempting decisions of the Tribunal on review of decisions to reject or dismiss a complaint, from the provisions of the JRA, "Parliament has opened the way to another tier of appeals in discrimination matters that could include not only appeals to a single judge of this Court, but also appeals to the Full Court, and even applications for special leave to appeal to the High Court of Australia". He observed that the Schedule to the JRA contained a list of statutes, with the ADA not being one of them.

20           The Attorney's position is that it is unlikely that, given the wording of s 15(2), it has the effect of precluding judicial review under the JRA of decisions under the ADA. Counsel said that two constructions of the provision were open. The first – the narrow construction – was that in the circumstances where s 15(1) appeared to override contrary provisions in other laws, the words highlighted in s 15(2) might serve to preserve provisions in the Schedule 2 listed enactments which expressly or impliedly excluded all limited review under the JRA. The second construction – the broad construction – might mean that the JRA has no application to any decisions made under the listed Acts.

21           Ms O'Farrell accepted that the ordinary meaning of the words did not shed any light on the ambit of s 15(2) and, in the written submissions, went on to provide lengthy and helpful submissions as to context and purpose. Fairly, the point was made by reference to Shergold v Tanner [2002] 19, 209 CLR 126, Butler v Attorney-General for the State of Victoria (1961) 106 CLR 268, Doyles' Farm Produce Pty Ltd v Murray-Darling Basin Authority (No 2) [2021] NSWCCA 246, 106 NSWLR 41, that the law is not to be interpreted as withdrawing or limiting jurisdiction unless the implication appears clearly and unmistakably. Counsel advised that the Attorney "remains sceptical that a clear and unmistakable intention has been evinced by Parliament".

22           I agree that it appears there may have been an intention to exclude the operation of the JRA, but in the absence of stronger wording in s 15 of the JRA and/or the ADA I would agree with the sceptical view. This would be a clear case of simply recording the fact that Parliament has missed its target: Harrison v Melhem [2008] NSWCA 67, 72 NSWLR 380 at [161]. I would accept Ms Chen's submission that the plain meaning of s 15(2) is that where an enactment mentioned in Schedule 2 excludes judicial review of particular decisions, the JRA will not override that provision, notwithstanding s 15(1). However, I do not need to finally decide the point because of my reasons that follow in relation to the Attorney's original submission.

23           The Attorney submits that the Commissioner's decision to accept a complaint is not a final, operative or determinative decision and as such, it is not susceptible to judicial review. This argument requires a look at further provisions of the ADA.

24           In common with most similar legislation, the JRA applies to "a decision of administrative character made, proposed to be made, or required to be made, under an enactment (whether or not in the exercise of a discretion)." As almost invariably happens in any case where there is a similar issue, the debate starts with the interpretation of the identically worded definition in the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) adopted in Australian Broadcasting Tribunal v Bond [1990] 170 CLR 321.

25          At 337-338, Mason CJ (with whom Brennan and Deane JJ agreed), after saying that a reviewable "decision" is one for which provision is made by or under a statute, continued:

"That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached is a step along the way in a course of reasoning leading to an

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ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on the point so that the decision, although an intermediate decision, might accurately be described as a decision under an enactment.

Another essential quality of a reviewable decision is that it be a substantive determination.

…

To say that a reviewable decision is an ultimate or operative determination does not mean that antecedent conclusions or findings which contribute to the ultimate or operative decision are beyond reach. Review of an ultimate or operative decision on permissible grounds will expose for consideration the reasons which are given for the making of the decision and the processes by which it is made."

26           His Honour gave the example of the refusal of an adjournment in the course of an administrative hearing as "being a procedural matter not resolving a substantive issue and lacking the quality of finality".

27           In Griffiths University v Tang [2005] HCA 7, 221 CLR 99, Gummow, Callinan and Heydon JJ in their majority judgment at [61], referred to the reasoning in Bond as having "apparently responded to an apprehension of misuse of the statutory review system by challenges at intermediate stages of decision-making processes" but the reasoning itself passed without criticism. Their Honours went on to address the identically worded requirement in the ADJR Act that the decision be "made under an enactment".

28           At [89], it was held that two criteria were involved; the decision must be expressly or impliedly required or authorised by the enactment, and secondly "the decision itself must confer alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment." Their Honours explained that the definition did not require the decision to affect or alter existing rights or obligations; it would be sufficient if the enactment required or authorised decisions from which new rights or obligations arose. [Emphasis in the original].

29          It is necessary to examine what the relevant decision is and its effects. In that context, I set out features of the ADA as follows:

• A complaint is defined by s 3 to mean a complaint made in relation to discrimination or prohibited conduct;

• A complaint to the Commissioner is to be in writing and, as well as identifying the person, class of persons or organisation against whom the alleged discrimination or prohibited conduct was directed and against whom the complaint is made, it must set out the details of the alleged discrimination or prohibited conduct – s 62;

• A complaint is to be made within twelve months after the alleged discrimination or prohibited conduct took place but the Commissioner may "accept" a complaint made 'out of time' if satisfied it is reasonable to do so – s 63;

• The Commissioner may "reject" any complaint on any one of a number of eight grounds including that in the Commissioner's opinion, the complaint is trivial, vexatious misconceived or lacking in substance, or that the complaint does not relate to discrimination or prohibited conduct – s 64(1), in particular subs (1)(a) and (1)(b) respectively;

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• The Commissioner is to decide whether to "accept or reject" a complaint within 42 days after its receipt and is to notify the complainant of the decision to "accept or reject" the complaint as soon as practical – s 64(2) and (3);

• If the Commissioner "accepts" a complaint, they must notify the recipient of the "acceptance" and provide reasons for doing so – s 67.

30           I have identified the ADA's use of the words "reject" and "accept" and variations of those words. Section 65 provides for a review by the Anti-Discrimination Tribunal only of a decision to reject a complaint, but not of the acceptance of one; "acceptance" is not mentioned. The Tribunal's decision on such a review has been held to be a decision reviewable under the JRA: Von Stalhiem v Anti- Discrimination Tribunal [2003] TASSC 24, 11 Tas R 307.

31           The applicants argue that an acceptance is simply the reverse of the s 64 rejection coin and should be regarded as essentially equal in effect. Accordingly, it has the status of a reviewable decision under the JRA. Of course, that assumes that a decision to reject the complaint under s 64, as distinct from the Tribunal's decision under s 65 has that status.

32           To advance the discussion some further features of the ADA need to be noted. It is not explicitly stated that a complaint is accepted "for investigation" but it is implicit in the scheme of things. Section 69 enables the Commissioner to investigate a complaint in a manner that is appropriate to the circumstances. By virtue of s 71, once the investigation is complete the Commissioner is to determine that the complaint is dismissed on any ground referred to in s 64(1) (except for one[2]), is to proceed to conciliation or is to proceed an inquiry by the Tribunal.

[2]              If in the opinion of the Commissioner, there is a more appropriate remedy that is reasonably available – s 64(1)(e).

33          As to conciliation, s 74 requires the Commissioner to attempt to resolve by conciliation or any other way any complaint that they believe may be resolved in that way. The applicants argue that s 75 has significance. That provides as follows:

"75. Conciliation conference

(1)	The Commissioner or an authorised person, by written notice, may direct a person to take part in a conciliation conference at a specified time and place whether before, during or after the investigation of the complaint.
(2)	A person, without reasonable excuse, must not fail to comply with any direction given under subsection (1) .Penalty: Fine not exceeding 10 penalty units.
…"

34          As to the consequences of an acceptance of a complaint, the applicants also note s 97 which enables the Commissioner to require any person on payment of penalty of a fine not exceeding 10 penalty units, to produce specified information or documents that the Tribunal or Commissioner believes may be relevant.

35           The case of Bullard v Anti-Discrimination Tribunal [2020] TASSC 15, cited by counsel for the Attorney in relation to a later point of argument has some relevance here. Geason J held that a complaint that is not accepted because it is out of time is not rejected under s 64 but it is simply not accepted under s 63. And so it is not capable of a statutory review under s 55, but it is a decision to which the JRA applies.

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36           Inherent in that proposition is the point that the word "accept" is used differently as between ss 63 and 64. At [30] his Honour said that in s 64 its use is in respect of a complaint which is not rejected for any of the reasons in s 64(1). At [32], his Honour explained that "s 63 is about procedural compliance, whereas s 64 involves a substantive assessment of a complaint which otherwise satisfies the requirements for procedural validity." He added that "accept' as used in the ADA takes its meaning from its context. [My emphasis].

37           It must be right that an acceptance under the ADA is not merely the consequence of a failure to reject. The concept of acceptance is to be found in the Act itself. As Geason J pointed out in Bullard, the word "accept" in the ADA takes its meaning from its context. As he noted, s 60(3) enables the Commissioner to "accept" a complaint from a child if satisfied that the child has sufficient maturity to make the complaint. Rejection is not specifically mentioned and this ground is not mentioned in s 64(1). The same applies to s 66 which allows the Commissioner to "accept" a complaint from a person who had previously agreed with another not to complain.

38           I did not understand the Attorney to argue that an "acceptance" is not a decision under the ADA in the ordinary sense of the word. However, counsel for the Attorney argues that the decision to accept a complaint is not sufficiently final or operative or determinative in any practical sense. Ms O'Farrell cited four cases as sufficiently alike to be authoritative. I will deal with them in chronological order.

39           The first is Edelsten v Health Insurance Commission (1990) 27 FCR 56. The Health Insurance Act 1973 (Cth) (the HIA) contained a scheme for the review of the provision of services by medical practitioners. Practitioners could be required to supply details of claims for Medicare benefits. There were two decisions the subject of scrutiny. The first was a decision of a delegate of the Commission that there was sufficient evidence to warrant a referral to a committee of inquiry and at the same time refer the matter to the Minister with recommendations. The second decision was one of the Minister's delegate to also refer the matter to the committee of inquiry.

40           The Full Court, (Northrop, Davies and Lockhart JJ), referred to Bond as authority for the principle that generally for a decision to be reviewable it must have a quality of finality, not being merely a step taken on the way to possible making of an ultimate decision, and having the essential quality of a substantive as distinct from a procedural determination. The court held that neither of the two decisions affected the practitioner's rights. It was said that the decisions were at a very early stage of the administrative process and were no more than steps in an administrative process that might lead to an ultimate or operative determination affecting his position; the decisions were remote from any such consequences. See pp 67-70.[3]

[3]                 The authors of Aronson, Groves & Weeks, Judicial Review of Administrative Action and Government Liability, 7th ed, observe that the court did not separately discuss the possibility that the challenged acts were decisions in their own right because the Act had made separate provision for them and they were decisions relating to matters of substance.

41           The next case is Harris v Bryce [1993] 41 FCR 388. It is of some importance because it involves the Sex Discrimination Act 1984 (Cth) (the SDA) on which the Tasmanian Anti-Discrimination Act was clearly based. The SDA worked in a similar, but perhaps more rudimentary way. The decision in Harris was primarily concerned with whether the alleged discrimination took place within the context of a project which was or was not a Commonwealth program. The judgment of Morling J does not contain any real analysis of the provisions of the SDA but what is revealed is that the Commissioner made a decision under that Act to enquire into a complaint. His Honour accepted the submission that the decision was not amenable to review under the ADJR Act. The SDA worked in the following way:

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• A complaint in writing alleging that a person had done an act unlawful by virtue of the Act may be lodged with the Human Rights and Equal Opportunity Commission – s 50.

• The Commission was required to notify the HREO Commissioner, and the Commissioner was required, subject to some provisos, to enquire into the alleged unlawful act "and endeavour, by conciliation, to affect a settlement to which act relates" – s 52(1).

• That provision was subject to the proviso that the Commissioner may decide not to inquire into an act if satisfied that the act was not unlawful by reason of exemptions or other provisions, the complaint was made more than 12 months after the Act had been done, or the agreed person did not desire that enquiry be made or continued – s 52(2).

• For the purpose of inquiring into an alleged unlawful act and endeavouring to settle the matter to which the act relates, the Commissioner could direct persons to attend a compulsory conference – s 55.

• The Commissioner was required to refer the matter to the Commission if of the opinion that the nature of the matter was such that it should be referred, or that the matter could not be settled by conciliation, or had endeavoured to settle by conciliation but was not successful– s 57.

• Both the failure to attend the compulsory conference and a failure to furnish required information were offences.

42           As can be seen, there are close similarities with the ADA. The decision the subject of scrutiny in Harris v Bryce was the Commissioner's decision under s 52 of the SDA. At 396, after referring to Bond, Morling J said that the decision was not final or operative or determinative of any issue. Rather, it was more properly described as a conclusion or step along the way in a course of reasoning leading to an ultimate decision which was yet to be made; that is, a decision whether or not there had been a breach of the SDA. Moreover, the decision was not a substantive determination in the sense that, of itself, it did not determine any person's rights. (I note that in Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179, it was held that a decision to refer a matter to the Commission under s 57 of the SDA was not reviewable.)

43           The next case is Byrne v Marles [2008] VSCA 78, 19 VR 612, a decision of the Court of Appeal of Victoria. It involved an application for certiorari, not statutory judicial review, and although a decision not dealing with identical or closely similar legislation, it has some bearing on the issue. It involved the disciplinary scheme for legal practitioners in the Legal Profession Act 2004 (Vict). A Legal Services commissioner was required to investigate each disciplinary complaint. That phrase was defined as being a complaint about relevant conduct to the extent that the conduct if established, would amount to unsatisfactory professional conduct or professional misconduct.

44           The Commissioner could refer a disciplinary complaint to a prescribed investigatory body for investigation. If so referred, that body had to investigate the complaint and report to the Commissioner with a recommendation as to what action, if any, the Commissioner should take. The Commissioner was then required to apply to a tribunal for available orders if "satisfied there is a reasonable likelihood that the tribunal would find the practitioner guilty of professional misconduct." The same section enabled the Commissioner to apply for orders if satisfied there was a reasonable likelihood that the tribunal would find the practitioner of unsatisfactory professional conduct, or to deal himself/herself with the matter in one of the prescribed ways.

45           The leading judgment was written by Nettle JA, with whom Dodds-Streeton JA and Coghlan AJA agreed. Notwithstanding the remedy sought, his Honour referred to both Bond and Edelsten, and after reviewing a number of other authorities, at [65]-[66] held that the Commissioner's decision to investigate a complaint as a disciplinary complaint did not sufficiently determine rights, or was at least

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not sufficiently connected with a final decision affecting rights to satisfy the requirement for the necessary effect on the final or ultimate decision. Bond and Edelsten, it was said, showed that the contrary proposition was "plainly not so".

46   At [71], his Honour said (omitting references):

"No doubt a decision by the Commissioner to treat a complaint as a disciplinary complaint and to investigate it as such or to refer it for investigation by the Institute enlivens the investigative powers of the Commissioner and the Institute, including powers to compel the production of documents and explanations. In that limited sense it may be said that such a decision is one which satisfies a condition precedent to the exercise of power which may in turn affect rights or otherwise give rise to legal consequences. But that is not sufficient to attract certiorari. It does not necessarily follow from the Commissioner’s decision to investigate or refer that compulsive powers will be invoked. It is conceivable that an examination could be carried out without any reference to the subject of the complaint or alternatively by means of interview without any compulsion."

47           The same might be said in relation to the power to compel attendance at conciliation conferences and the production of information under ss 75 and 97 of the ADA. The relevant provisions are enabling ones, and it is not necessarily the case that there is a direction to take part in a conciliation conference, although it would seem from general comments in the correspondence from the Commissioner in this case, that conciliation as a first step is normal in most cases.

48           A point in the Byrnes case was the role of the Commissioner to determine whether a complaint fell within its statutory description. A determination by the Commissioner of a failure to fall within the statutory description of a "complaint" under the Act, is a ground for rejection under s 64(1)(b). Because of the later arguments made in this case, I will return to Byrnes v Marles.

49           The last case relied on is Yoong v Chief Executive of Medicare [2021] FCA 701. This involved consideration of a later iteration of the HIA. The Chief Executive of Medicare could request the Director of Professional Services Review to review the provision of services by a particular person. Having been so requested, the Director had to decide within one month whether to undertake the review. The review had to be undertaken if it appeared to the Director there was a possibility the person had engaged in inappropriate practice in the provision of services.

50           Rangiah J referred to both Bond and Edelsten and, at [159] and [162], held that neither decision was amenable to review under the ADJR Act. The first decision – the request to review – was said to not directly affect any rights of a practitioner, but only triggered the Director's obligation to make a decision as to whether or not to take a review. More significantly perhaps, the second decision as to whether to undertake a review was said to also lack the quality of a final or operative determination of a substantive kind; it did not directly affect any right or obligation of a practitioner but simply determined whether the review would be undertaken: "Any affect on a person's legal rights or obligations would be the result of separate decisions … following the conduct of a review".

51           His Honour went on to consider reviewability under the Judiciary Act 1903 (Cth) and, after referring to Byrnes v Marles (above) among other cases "held that the decisions were not susceptible to certiorari. The circumstances of Marles were said to be analogous.

52          To that list of cases should be added Karmakar v Minister of Health (No 2) [2021] FCA 916. That involved the same scheme as was considered in Yoong and judgment was handed down about a month or so later. Without reference to Yoong, Logan J reached the same conclusions. That is, neither the decision by the Chief Executive of Medicare to request a review, nor the decision of the Director to undertake the review were reviewable under the ADJR Act. At [14], his Honour said that the decisions

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were wholly procedural and did not have the necessary quality of finality. See also Duncan v Orr [2008]
FCA 31, 217 FCR 559 at [93]-[95], [100].

53           It might pay to attempt to demonstrate when it might be that decisions at a relatively early stage of investigative or review processes will be reviewable. In Sherman v Medicare Participation Review Committee (1995) 60 FCR 1, Jenkinson J also had to consider a decision under the HIA. That Act made provision for the establishment of a review committee. If a practitioner was convicted of "a relevant offence" a notice was given to a committee whose task it was to determine what, if any, action should be taken, one option being disqualification.

54           The HIA provided for the giving of undertakings by practitioners who wished to be approved pathology providers. When the matter of a conviction came before a review committee, a relevant consideration was whether the facts of the conviction put the practitioner in breach of the undertaking. The HIA provided that where the committee had reasonable grounds to believe that an approved pathology practitioner had breached an undertaking, it may determine that it should consider whether the practitioner had in fact breached that undertaking. Such a decision was held to be reviewable under the ADJR Act. Jenkinson J said that although in one sense it was an intermediate determination on the way to deciding whether the undertaking had been breached, it was a decision on a matter of substance which the relevant section provided was an essential preliminary to the making of the ultimate decision. That is consistent with Bond, to which his Honour referred.

Resolution

55           It is clear that the Commissioner's decision to accept a complaint has some of the features of a reviewable decision. It involves a deliberative process with intellectual engagement with the issues contained in s 64. Written reasons are a statutory requirement. Arguably at least, it is a decision "under an enactment" as explained in Tang (above) in that it is expressly authorised by the ADA and does affect legal obligations in the sense that it creates potential obligations relating to conciliation and the production of information and documents.

56           The issue is not free of difficulty but taking into account the differences in the statutory provisions, the cases I have examined show no support for the general proposition that decisions to investigate or review or conduct and the like are more than procedural preliminary matters and possess the proper degree of finality. The decision in Harris v Bryce is particularly significant given the legislative similarities and I am not convinced it was wrongly decided. In the end I am persuaded, and I hold, that the decision to accept a complaint under the ADA is not a decision within the meaning of the JRA and is not reviewable. It is a procedural decision leading to an investigation and/or possible conciliation and does not sufficiently determine any ultimate rights, obligations or liabilities.

57           It follows that the application for review must fail. Strictly speaking, it is not necessary to go any further but in deference to the arguments put and as part of my perceived obligations at this level, I will address the remaining issues.

The Commissioner's task – s 64(1) of the ADA

58           The applicants submit that the task under s 64(1) is to determine whether what is lodged is a complaint within the meaning of the ADA. If it is not, then the complaint must be rejected. The applicants argue that in relation to that determination, the existence of a prescribed attribute and that the alleged conduct occurred within a designated area of activity are jurisdictional facts. Those things are "pre-conditions to the existence of a complaint within the meaning of the Act", in the absence of which there is no "complaint" and therefore no jurisdiction. (There was some interchangeable use of the words "jurisdiction" and "power", as it was also put that in the event there is no "complaint", there is no "power" to accept it.)

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59           The focus of the arguments was the meaning of s 64(1)(b) and nature of the Commissioner's task. The Attorney argues that there is an assessment process that is akin to deciding if there is a prima facie case.

60	Section 64 should be set it out in its entirety. "64. Rejection of complaints
(1) The Commissioner may reject any complaint if –

(a)	in the opinion of the Commissioner, it is trivial, vexatious, misconceived or lacking in substance; or
(b)	the complaint does not relate to discrimination or prohibited conduct; or
(c)	the complainant has commenced proceedings in a commission, court or tribunal in relation to the same events, and that commission, court or tribunal may order remedies similar to those available under this Act; or
(d)	a person other than the complainant has commenced proceedings in a commission, court or tribunal in relation to the same subject matter of the complaint and the Commissioner is satisfied that the subject matter may be adequately dealt with by that commission, court or tribunal; or
(e)	in the opinion of the Commissioner, there is a more appropriate remedy that is reasonably available; or
(f)	the subject matter of the complaint has already been adequately dealt with by the Commissioner, a State authority or a Commonwealth statutory authority; or
(g)	in the opinion of the Commissioner, the subject matter of the complaint may be more effectively or conveniently dealt with by a State authority or a Commonwealth statutory authority; or
(h)	in the opinion of the Commissioner, the complaint relates to conduct that is within the scope of an exemption granted under Division 11 of Part 5 .

… "

61          It will be recalled that in Bullard (above) Geason J referred to the determinations to be made under s 60(3) and s 66, as discussed above, and at [35] then said:

"In each of these respects the concept of accepting a complaint is akin to the Commissioner exercising a gatekeeper role. It is only once a complaint passes through that gate that the issues raised in the complaint fall to be considered. It is at this stage that a complaint is capable of rejection." [Original emphasis]

62           It may well be that his Honour was confining those remarks to the two provisions, but I think that properly describes the whole of the s 64 process. I earlier noted that his Honour said s 64 involved a substantive assessment of a 'complaint' procedurally under s63. I agree. I venture to repeat what I said in State of Tasmania v Anti-Discrimination Tribunal [2009] TASSC 48, 19 Tas R 54 at [13]; viz, the exercise on which the Commissioner is embarked is that of a screening process, so that it is only complaints which appear to have such substance as to require them to be dealt with by conciliation or inquiry that are to be taken forward.

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63           I reject the applicants' submission. In my view it involves reading far too much into the provision and is not a construction that accords with the remedial nature of the ADA. There are authorities to the contrary which relate to comparable legislation. Accordingly, in relation to s 64(1)(b) a substantive assessment does not mean that the merits are to be examined so as to establish whether various elements of discrimination or prohibited conduct are made out as jurisdictional facts. As noted above, "complaint" is defined by s 3 to mean a complaint made in relation to discrimination or prohibited conduct. On the face of it, s64(1)(b) reflects the words of the definition. A complaint that does not relate to discrimination or prohibited conduct is not one that is made in relation to those things. The two expressions are synonymous. That means reading the word 'complaint' in subs (1)(b) in a neutral way, but it is unlikely that Parliament intended otherwise. The exercise therefore involves an assessment of whether there is a complaint as defined. If it does not meet the definition, then it can be said to be outside the scope of the Act.

64           The jurisdiction to investigate is therefore triggered by the receipt of a complaint that complies with the statutory description. That is subject to the other grounds for rejection as set out in s 64(1). The Commissioner must assess and determine whether the complaint is one "relating to" discrimination or prohibited conduct. That connective phrase has been the subject of no little judicial consideration. It is treated as synonymous with "in relation to" and "with respect to": see the cases in the appendix to par [12.7] of DC Pearce, Statutory Interpretation in Australia, 10th ed at p 539.

65          The extent of the required connection between two subject matters is dictated by the context in which the phrase is used: Travelex Limited v Commissioner of Taxation [2010] HCA 33, 241 CLR 510 at [25]. The expression "in relation to "is capable of bearing a broader or narrower meaning as the context requires but generally of wide import: O'Grady v Northern Queensland Co Ltd (1990) 169 CLR 356 per Toohey and Gaudron JJ at 374. A one-word synonym that might well fit the meaning of the phrase in the definition in the Act is "concerns"; a word that has been said to bear no relevant distinction from the phrase "relating to": see ACCC v PT Garuda Indonesia Limited [2010] FCA 551, 269 ALR 98 at [115].

66           In Nestle v Equal Opportunity Board [1990] VR 805, Vincent J dealt with legislation of a similar nature to the ADA, and which had a provision similar to s 62(1). The provision enabled a person who claimed discrimination on relevant grounds to lodge a complaint to a commissioner "setting out details of the alleged act of discrimination … ." At 812, his Honour said it seemed clear that the capacity to inquire turned solely on the terms of the application and any annexed documents. He added that it was important to avoid the adoption of an unduly restricted or pedantic interpretation of the document; saying that it need not allege relevant facts with the particularity of a pleading.

67           His Honour noted there were features of the legislation that suggested an intention to provide a simple means of access, and an appropriate measure of flexibility to ensure the substance of a matter received attention if some difficulty arose as to what might be a defect in the complaint. At 813, his Honour said that despite those provisions, it was clear that a written complaint, although not to be treated as a formal document of pleading, "must raise on its face the question of possible discrimination of a kind which will bring the matter within the board's jurisdiction".

68   At 813, his Honour continued:

"There is, of course, also a substantial principle underlying this review. As a matter of essential fairness, no person should be subject to the processes and coercive powers of a statutorily created authority without it being apparent at the outset that a sufficient basis exists for initial intervention by that authority through the assumption of jurisdiction. The courts have long since accepted that individuals or organisations should not be subjected to the processes of law unless an adequate initial basis is provided by reference to which legitimacy or otherwise on the taking of any step or any further step can be assessed.

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…

[Although a lack of particularity in the complaints and the absence of attempts to relate alleged acts to grounds specified in the Act do not constitute a bar to the invocation of jurisdiction], it is nevertheless necessary for the acts which have been identified in the complaints to be such that a preliminary recognition of jurisdiction can be made."[My emphasis]

69           When turning to the sufficiency of the complaint, his Honour said the question to be asked was whether what is alleged in any particular complaint is capable, if established, of amounting to discrimination on a ground which is proscribed, and therefore sufficient to found jurisdiction.

70           The decision in Nestle was applied by Cox CJ in Commissioner of Police v Reid [2000] TASSC 181, 9 Tas R 418. His Honour considered the sufficiency of a complaint made under the Sex Discrimination Act 1994. That Act provided that a complaint was to be made in writing, identify the person, class of persons or organization against whom the alleged discrimination or prohibited conduct was directed and against whom the complaint was made, and set out details of the alleged discrimination or prohibited conduct. At [10], after setting out passages from Nestle including that containing the part I have highlighted above, his Honour found that the complaint in that case "gave sufficient detail to invoke the Commissioner's jurisdiction." There are earlier cases that support this approach in similar legislative contexts: see Langley v Niland [1981] 2 NSWLR 104 at 105 and R v Sex Discrimination Board, Ex parte City of West Torrens (198) 27 SASR 58 per King CJ at 60.

71           Were it necessary to decide the issue, I would take the view that those cases be applied to the exercise under s 64(1)(b) of the ADA. The test is whether the complaint relates to, or concerns, discrimination or prohibited conduct, in the sense that what is alleged is capable, if established, of amounting to discrimination or prohibited conduct. That includes legal questions and mixed questions of law and fact: Nestle at 814 et seq; Reid at 430. In this case, the test extends to the issues of the existence of a prescribed attribute and of conduct within a relevant area of activity. Putting it more colloquially, the complaint must sufficiently raise on its face the possibility of discrimination or prohibited conduct. I would suggest that there must be a reasonable possibility, not a speculative or fanciful one.

72          I will now deal with the two points of law raised, first on the basis I am wrong on the jurisdictional fact point just considered, and then applying the test as I have determined it to be.

A disability?

73 "Disability" is defined in s 3 of the ADA as follows:

"disability means any of the following that presently exists, previously existed but no longer exists, may exist in the future, whether or not arising from an illness, disease or injury or from a condition subsisting at birth:

(a)	a total or partial loss of the person's bodily or mental functions;
(b)	total or partial loss of a part of the body;
(c)	the presence in the body of organisms causing or capable of causing disease or illness;
(d)	the malfunction, malformation or disfigurement of a part of a person's body;
(e)	disorder, malformation, malfunction or disfigurement that results in the person learning differently from a person without the disorder, malformation, malfunction or disfigurement;

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(f)	a disorder, illness or disease that affects a person's thought processes, perceptions of reality, emotions or judgment or that results in disturbed behaviour;
(g)	reliance on a guide-dog, wheelchair or other remedial or therapeutic device."

74           The definition contains the operative word "means" and not "includes". As stated in Statutory Interpretation in Australia, 10th ed, (above) at [6.60], the orthodox and, the author submits, the correct approach is that the word "means", if used alone, is intended to be exhaustive. Definition provisions may be impliedly subject to the qualification "unless the contrary intention appears": see Deputy Commissioner of Taxation (NSW) v Mutton (1988) 12 NSWLR 104 at 108. But there is nothing I can see in the operation of the Act which would compel the conclusion that where the words "disability" is used, any contrary intention appears.

75           In considering the question of disability I note that the seven parts of the definition are not mutually exclusive. Additionally, with a definition such as par (f), the adjectival phrases that refer to results or effects are of themselves to be taken as part of the disability, so that discrimination can occur in relation to the results or effects, and not merely to the underlying causative disorder. See Purvis v New South Wales (Department of Education and Training) [2013] HCA 62, 217 CLR 92 at [11], [27], [212].

76           The applicants argue that a low level literacy does not constitute a disability within the definition. A concession to this argument is implicit in the Attorney's submissions. The Attorney argues though, that it was open to the Commissioner to let the matter through to the investigation stage, because the complainant's poor literacy may be symptomatic of a disability – particularly one falling within par (e) of the definition – the extent of which would reveal itself upon investigation. Counsel submitted the investigation stage is plainly intended to allow time to properly identify a complainant's disability, if any.

77           It is possible that someone with literacy issues arising from learning difficulties may bring themselves within par (e) of the definition. The arguments in this case require an examination of the complaint. In the complaint itself, the word "Disability" is given in answer to a pro forma question "What are you complaining about? Have you been discriminated against because of: … ". That is the extent of the terms of that document.

78          In an email to the prosecutor, Ms Dawkins, dated 23 February 2023 which was attached to the complaint, Ms Smith says:

"With regard to my father's literacy difficulties I can advise that he has always had difficulties with reading. He failed the subject of English throughout his schooling. He recalls more capable of studying Maths and completing practical hands on 'tasks' which is why he attended technical school until aged 15 when he left school. My father states that he has never read a book or even a comic."

79           Ms Smith went on to describe assistance her father had recently needed in writing out his will preferences, which included correct spelling of family member names and addresses. He also recently attended a dental appointment where the written procedure risks had to be read out to him. She continues:

"I am aware of some letters he has written regarding these FPA matters which highlight his low level literacy skills. I hope these details assists (sic) you in understanding that my father has limitations in reading material, which I believe has stemmed from poor educational outcomes".

80           In the reasons for acceptance, after noting the reference in the complaint to the low level of literacy and a struggle to read and write, the Commissioner thereafter simply referred to the suggested

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attribute as a disability without any apparent consideration of what part or parts of the definition was or
were satisfied, and why that would be so.

81           The applicants say that based on the terms of the complaint, it would appear Mr Smith's difficulties and limitations only constitute a skill deficiency merely as an "outcome" of Mr Smith's education, and do not fall within any statutory description of disability.

82           Of course, it must be accepted that people who suffer low levels of literacy experience difficulties in day-to-day life. There is no doubt they are at a general disadvantage. In ordinary language that disadvantage might be described as a disability. Unfortunately, the number of such people may be relatively high. But I think it quite clear that Parliament has not included literacy difficulties as such in the definition. If it was so intended, the expression of that intention is very obscure, to say the least, and would require an unacceptable intrusion of words into the statute.

83           To take the view that low level literacy amounts to a disability as such within the meaning of definition would be an error of law and the first set of grounds would succeed, but that submission was made in the context of the "jurisdictional fact "argument. If what I have said about the exercise under section 64(1)(b) is correct, such an error would be immaterial in this review provided the complaint raised a reasonable possibility of the existence of a disability within the meaning of the ADA.

84           My views are as follows. I do not agree that it is the Commissioner's role to accept a complaint for investigation involving a search for, or identification of, a complainant's "disability" where none is sufficiently identified or made out as a reasonable possibility on the material to the extent that there is no "complaint". The screening process required by s 64 calls for some rigour. There is no room for mere speculation of the acceptance of fanciful possibilities. That said, a complaint does not require the precision of a formal document such as an indictment or civil pleading. It is compliant if it provides sufficient information to enable a preliminary recognition of jurisdiction: Nestle (above) at 812-813 and Reid (above) at [8].

85           In this case, and although perhaps erring on the side of benevolence to Mr Smith, I would accept that the complaint, albeit not put in these terms, sufficiently raises the possibility of a disorder such as dyslexia, a well-known and not uncommon condition that would fall within par (e) of the definition. I say that because although the low level literacy is described as a poor educational outcome, Mr Smith does not seem to have suffered the same outcome in mathematics. In that respect, I must say the complaint barely satisfies the test, and ultimately of course, Mr Smith will have to establish that he has a disability within the meaning of the Act and the nature and extent of that disability.

86           I venture some further comment. In this type of situation where there is some doubt about the existence of an attribute but there is sufficient in the complaint for it to be accepted, I would think it may be more appropriate for the Commissioner to make further inquiries about that issue before forcing a respondent to conciliation with the issue unresolved.

A section 22 area of activity?

87           Given my approach to these questions as earlier stated, the first question is whether, on the complaint and accompanying documents, the Commissioner was correct in deciding that Mr Smith and/or either respondent was engaged in, or undertaking, an activity in connection with the administration of any law of the State or any State program: s 22(1)(f). The Commissioner included a State program but the Attorney concedes that it is not applicable in this case. Accordingly, the focus is on the issue of whether there was "activity in connection with … administration of any law of the State."

88           It will be recalled that the Commissioner's reasons contain the statement that as Mr Smith's request related to criminal charges brought against him by the respondents, the administration of any

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law of the State or any State program was the appropriate area of activity. No explanation was provided
as to why that would be so.

89           The applicants' submit that as to the FPA, while no issue is taken with the proposition that it administers the Forest Practices Act, it was not so engaged once it referred the matters to the DPP having discharged its statutory obligations.[4] And in any event, they say – correctly in my view – that the material shows that Dr Volker engaged in some correspondence with Ms Smith about audio disclosure but it is outside the scope of the proposed investigation because of the time limitation. The argument then is that prosecution is distinct from administration, and that "the relevant area of activity here is the prosecution of an offence, which does not constitute 'administering any law of the State' …"

[4]              Section 4G(1)(b) of that Act imposes the responsibility on the FPA to cause appropriate enforcement action to be taken where it finds instances of non-compliance with the Act or the Forest Practices Code. Section 4G(2)(a) enables the FPA to discharge that responsibility by causing complaints to be made in respect of offences.

90           The applicants refer to the Macquarie Dictionary Online for the ordinary meaning of the word "administration". It is there described as "the function of a political state in exercising its governmental duties." (According to the Macquarie Dictionary, 8th ed, "administer" has, as one of its meanings, "to manage (affairs, a government, etc); have charge of the execution of: to administer laws." [Italics in original]) The submission is that "prosecution", the relevant ordinary meaning of which according to the same source, is the institution and carrying on of legal proceedings against a person, is distinct from administration.

91           In support of the argument, Ms Chen cited the decision of Underwood J (as he then was), in Secretary, Department of Justice and Industrial Relations v Anti-Discrimination Commissioner [2003] TASSC 27, 11 Tas R 324. That case involved a complaint against the DPP of alleged discriminatory conduct in deciding not to proceed with a prosecution. One of the main reasons given by the DPP was because the child, the alleged victim of the crime, had very limited communication skills and would need an interpreter. At the time, s 22 of the ADA was differently worded. It only concerned discrimination against a person engaged in, or undertaking, any activity in connection with the administration of any law of the State and(sic) any State program. Accordingly, the relevant activity was that of the alleged victim of discrimination, not the respondent to a complaint.

92           Underwood J held that neither the applicant, nor for that matter the DPP, was engaged in or undertaking any activity in connection with the administration of any law of the State and any State program. As to the administration limb, at [45] his Honour said that the DPP might well have been considering the application of a State law or laws and he might well have been exercising a statutory power conferred upon him by a State law, but he was not administering any law. Similarly, at [46], his Honour said that then complainant was not doing anything herself; she had made a complaint, and it was referred to the DPP.

93           The applicants say that this case is applicable to Mr Smith's complaint. Presumably, they assert that the decision is authority for the proposition that conducting a prosecution or, as in that case, managing a potential prosecution, do not involve administration of any law. Therefore if, for instance, the parties were involved in pre-trial disclosure, that is not a relevant activity because it is not in connection with the administration of any law. The Attorney says the case is distinguishable because the complaint to the Commissioner had passed through the investigation stage and been referred to the Tribunal for inquiry, although I do not see any point of distinction for that reason. It is, of course, a different situation in that no proceedings had been instituted and the point did not arise.

94           Counsel for the Attorney referred to the fact that in the present case proceedings were instituted under the Justices Act 1959 and noted that in such proceedings, disclosure is routinely made the

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entitlement to which, it is said, arises at common law. The submission is that Mr Smith was seeking disclosure in connection with proceedings under the Justices Act 1959 and in accordance with that entitlement; on that basis, he was engaged in, or undertaking, an activity in connection with the administration of that Act and/or the common law. (The material does not disclose that Mr Smith sought disclosure as such; rather it was done at the various prosecutors' instigation, but nothing turns on this.)

95           Ms O'Farrell submits that the reference to "any law of the State", is not confined to legislation. I would accept that submission. In Sobh v Police Force of Victoria (1994) 1 VR 41 per Nathan J at 55 said as much in dealing with the phrase "administration of the law" in the context of exemptions under freedom of information legislation. I see no reason it would be any different in relation to the phrase "administration of any law" in s 22(1)(f).

96           As to that phrase, Ms O'Farrell did not contend that the phrase extended to a general body of law; for example, as may be applicable in this case, the criminal law. That would accord with the approach of Underwood J in Secretary, Department of Justice (above). There, his Honour simply addressed the question of whether the complainant, or indeed the DPP, was engaged in administering any law. His Honour looked at what, if any, particular law was being administered. The reasons do not reveal that his Honour considered the notion that "any law" would include the criminal law generally, although the issue does not seem to have been raised. (In those reasons he did not see it necessary to consider what might be the expanded notion of an activity "connected with" the administration on any law. But plainly, if no administration of any law is involved, then there can be no relevant activity engaged in or undertaken in connection with it.)

97           The Attorney's position as advanced would seem to suggest a lack of support for the Commissioner's approach. Ostensibly, that approach was to simply place Mr Smith's requests as to pre- trial disclosure in the context of criminal charges against him, and to conclude that therefore the "appropriate" area of activity was that set out in s22(1)(f), including a State program. The decision in Secretary, Department of Justice and the submissions of counsel for the Attorney would call for a more critical analysis of any given situation.

98           Of course, it must be borne in mind that anti-discrimination legislation is remedial in character and should therefore receive a liberal construction: IW v The City of Perth (1997) 191 CLR 1 at 12 and 39. Section 8A of the Acts Interpretation Act mandates the adoption of an interpretation that promotes the purpose or objects of the Act to one that does not. But a court is not at liberty to adopt a construction that is unreasonable or unnatural: IW per Brennan CJ and McHugh J at 12.

99           There is a degree of ambiguity about the phrase "administration of any State law" in s 22(1)(f). When put in the context of other areas of activity, such as employment and accommodation, it does have an appearance of generality. However, the use of the word "any "in the adjectival sense indicates an indefinite or non-specific number of laws. Parliament has not used what might be considered language with a broader import such as "administration of law" or "administration of the law". It must also be remembered that the full description in par (1)(f) includes the words "State program"; it reads "administration of any State law or program." That context would suggest specificity.

100         I would take the view, in accordance with Underwood J's approach and adopting the tenor of the Attorney's position, that the phrase under consideration is concerned with the administration of a particular law or a particular aspect of the law. That is, it is concerned with the performance of duties or functions and the execution of powers provided for in a law or laws. A more common example of the operation of this type of provision is to be found in, for instance, Pallet v Commonwealth Department of Human Services-Centrelink [2017] FCA 1132 which involved alleged discrimination in the refusal of social security benefits under the Paid Parental Leave Act 2010 (C'th).

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101         I would reject the applicants' primary argument. At that level of generality, there is some force in the suggestion that a prosecution for offences under an enactment involves the administration of that law because it is the enforcement of that law. Enforcement would include matters of practice and procedure. I acknowledge, of course, that once charges have been laid the ultimate management of procedural issues rests with the court. Of relevance to this case, a court can make orders that the prosecution produce documents or things. But that is not to say that within a prosecution there are no extra-curial "activities" connected with the administration of a law.

102         With respect to those generally involved, it is not difficult to conceive of how discrimination or prohibited conduct could occur in the activities of prosecuting authorities in connection with certain laws, some not involving the charged person. Assisting defence access to prosecution witnesses, and applications under the Evidence (Audio and Audio Visual Links) Act 1999 and the Evidence (Children and Special Witnesses) Act 2001 are some examples. All of that leads to a closer consideration of what activity is involved in this case and the law to which relates.

103         While I would not agree with the suggestion that the administration of the Justices Act is involved, I would accept the submission made by Ms O'Farrell that the activity being engaged in is the pre-trial disclosure process. That requires some analysis. The view was long held that that there was no right in an accused person to obtain discovery of documents relevant to a charge faced: see R v Charlton [1972] VR 758 and Clarkson v Director of Public Prosecutions [1990] VR 745. (And see Sobh (above) per Brooking J at 41-48 for the history of disclosure in criminal cases.) However, in 2005 the High Court pronounced "that the prosecution must at common law … disclose all relevant evidence to an accused and that a failure to do so may, in some circumstances require the quashing of a verdict of guilty": Mallard v The Queen [2005] HCA 68, 224 CLR 125 at [17] per Gummow, Hayne, Callinan and Heydon JJ, citing Grey v The Queen [2001] HCA 65, 75 ALJR 1708. See also in this State, Everett v Tasmania [2008] TASSC 87 at [15]-[16].

104         The origin and nature of the duty was discussed in Cannon v Tahche [2002] VSCA 84, 5 VR 317. At [56]-[57] the Court, (Winneke P, Charles and Chernov JJA), said that the prosecutor’s duty of disclosure was an aspect of what was sometimes called the "prosecutor's obligation to act fairly", and that it did not spring from any statutorily given power, but from practices established by judges over the years which had been designed to ensure that an accused person received a fair trial. Their Honours said authority suggested that whatever the nature and extent of the duty, it was a duty owed to the court and not a duty enforceable at law at the instance of the accused; it was a discretionary responsibility exercisable according to the circumstances as the prosecutor perceived them to be. At [58] their Honours emphasised that the prosecutor's responsibility was discretionary, and it was a duty owed to the court and not to the public at large or to an accused person.

105        However, the duty of a prosecutor who is a legal practitioner to provide disclosure is now enshrined in subordinate legislation in the form of the Australian Solicitors Conduct Rules 2015, embodied in this State in the Legal Profession (Solicitors Conduct) Rules 2020. In summary, r 34(5) provides that a prosecutor must disclose to the "opponent" as soon as practicable all material available, or of which the prosecutor becomes aware, which could constitute evidence relevant to guilt or innocence other than material subject to statutory immunity, unless the prosecutor believes on reasonable grounds that any disclosure would seriously threaten the integrity of the administration of justice or the safety of any person.

106         There might be a little discomfort with the notion that a complainant in person or a lay prosecutor is engaged in an activity in connection with "administering" the law of pre-trial disclosure when they are simply complying with an obligation to the court. In the case of legal practitioners, I would think it is still a matter of duty to the court; that is, the duty to a court and the statutory duty to the opponent would operate concurrently. But either way, I would accept that the management of, and putting into effect, the law as to pre-trial disclosure amounts to the "administration of any law".

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107         To the extent that it is necessary to comment, for the reasons previously noted and raised by the applicants, I would not accept that the FPA was in fact engaged in, or undertaking, that activity, but the DPP (or Ms Dawkins) was. But as to the critical point about Mr Smith's position, he is the defendant in the proceedings and is owed a duty under the Legal Profession (Solicitors Conduct) Rules. He in receipt of such information provided to him by way of disclosure as the prosecutor determines should be disclosed in the discharge of the obligation, and to which he is entitled.

108         I digress here a little to say something about the requirement in s 22(1) for the activity to be in connection with the administration of any law. That can describe a wide range of relationships between things or concepts, ranging from the direct and immediate to the tenuous and the remote: Statutory Interpretation in Australia 10th ed (above) at [12.11]. There, the author notes a common meaning as one thing "being bound up with or involved with another". Various synonyms that have been suggested such as "having to do with", "in the course of" and "forming part of": see Minister for Immigration and Multiculture Affairs v Singh [2000] FCA 845, 98 FCR 469 at [29]. Those phrases effectively convey the same concept, and I think that it is that concept contained in s 22(1)

109         It follows that I think it inevitable that Mr Smith can be said to have been engaged in an activity in connection with the administration of the law. I am not persuaded that even though the reasoning process may have differed, the Commissioner was wrong in law on this point. If I am wrong about that, the s64(1) test arises. Counsel for the Attorney submitted that as a definitive conclusion was not required at the rejection/acceptance stage, in light of uncertainty about the issue, the Commissioner could properly have been accepted the complaint and sought legal advice as part of the investigation. For my part, as the section 64(1) process requires a substantive assessment, legal advice may have preferable before acceptance, particularly given the consequences for a respondent.

110         In any event, the test is that stated in Nestle v Equal Opportunity Board and Commissioner of Police v Reid (above). A complaint must sufficiently raise matters which are capable, if established, of amounting to discrimination or prohibited conduct. Were it necessary to decide, I would accept that the complaint also does so on this point concerning an "activity in connection with administration of any law".

Outcome

111   The order is that the application is dismissed.

ADDENDUM – 10 APRIL 2025

Reasons for judgment were delivered on 7 April 2025. On 9 April 2025, the Court was advised by email from the applicants' legal representatives that par [2] of my reasons was not "factually correct" in two respects. The first error was that Verity Dawkins, who I said had carriage of the proceedings against Mr Smith, had not been so engaged for quite some time; it would seem from shortly after her exchange of correspondence with Ms Smith in February 2023; see [78] above.

More significantly, the second error was that I had said the proceedings against Mr Smith were not yet resolved. In the 9 April email the Court was told that the complaints against Mr Smith had been dealt with after the hearing of this application, that he had been convicted and had not appealed. That was the first I knew of those events. Further enquiries revealed that Mr Smith's matters were heard in the Magistrates Court on 16-20 December 2024, and on 8 January 2025 he was convicted of 10 offences and fined $90,000. Mr Smith was not represented at the hearing but had a McKenzie friend. All of this had happened before leave was sought to make the additional submission in relation to the preliminary point which is dealt with at [17]-[22] of these reasons.

I have corrected these errors in the body of the reasons. The finalization of the criminal proceedings against Mr Smith does not affect, in any legal sense, the Commissioner's proposed

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investigation. That is because, as noted in par [3] of these reasons, the proposed investigation relates to compliance with s 104 of the ADA. That section requires organisations to, among other things, ensure that its members, officers and employees are aware of discrimination and prohibited conduct to which the ADA relates, and to take reasonable steps to ensure that they do not engage in such conduct.